State v Ota [2005] PGNC 20; N2939 (12 October 2005)

N2939

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR. 898 OF 2004

THE STATE

-v-

ANERE OTA

FINSCHHAFEN : KIRRIWOM, J
2005 : 3rd August & 12th October

Counsel:

J. Done for the State

S. Maliaki for the Accused

12th October 2005

SENTENCE

KIRRIWOM, J: The prisoner was originally charged with incest under s. 223, which under the Amended Code carries a maximum penalty of seven years imprisonment. After reading the depositions I rejected the plea to incest for a number of reasons including:

1. While the indictment suggested that the offence was committed over a period of time, the evidence in the State case supported only one occasion.
   
2. The evidence from the victim supported threats of violence and forced sexual intercourse by a relative upon the victim.
   
3. The victim was aged 15 at the time of the attack and was therefore below the age of consent. She cannot therefore legally consent to sexual intercourse even with a relative for that matter as that is clearly prohibited by section 229A of the Criminal Code as amended.
   
4. To accept a plea of guilty based on negotiation between the defence and the prosecution to an offence that was legally unsustainable and carried lighter sentence to what would otherwise be higher if the charge were proffered for the offence overwhelmingly supported by the evidence is an affront to the spirit of the Amendment to the Criminal Code which was aimed at protection children from sexual abuse by adults of all ages and sex.
   

The State consequently withdrew the charge of incest and preferred a charge of sexual penetration of a child under the age of 16 years, contrary to section 229A of the Code. The section provides:

(1) A person who engages in an act of sexual penetration with a child under the age of 16 years is guilty of a crime.

Penalty: Subject to Subsection (2) and (3), imprisonment for a term not exceeding 25 years.

(2) If the child is under the age of 12 years, an offender against Subsection (1) is guilty of a crime, and is liable, subject to Section 19, to imprisonment for life.

(3) If, at the time of the offence, there was an existing relationship of trust, authority or dependency between the accused and the child, an offender against Subsection (1) is guilty of a crime, and is liable, subject to Section 19, to imprisonment for life.

In this case under subsection (3) the prisoner is liable to a maximum penalty of life imprisonment because the victim is related to him as her uncle (her mother’s youngest brother), and at the time of sexual intercourse there was an existing relationship of trust, authority and dependency between the prisoner and the child victim.

This incident was originally investigated as rape. And the factual circumstances are clearly supportive of allegations of rape. These are factors that the Court will weigh heavily when determining the appropriate penalty.

But firstly, the facts of this case can be stated as follows. On the morning of an unspecified date in August 2003 at about 6am the victim B E went down to a river to wash in preparation for school. She was in Grade 6 at Lubadu Community School at the time. She was then aged 15 years, born on 30th January 1988. She turned 16 on 30th January 2004.

After fetching water in a bucket and as she began pouring water on her body, the prisoner, confronted her with a bush-knife and threatened to cut her with it when she wanted to scream and pleaded with him. Despite her protests he grabbed both her hands and pulled her into the bushes where he forcefully penetrated her vagina. The victim did not go to school that day as she was in great pain. She did not tell anyone about the incident out of fear until there were visible signs of physical changes in her appearance. At the time she gave her statement to the Police, she was two months pregnant from this attack. Consequently she gave up schooling as the result of what happened to her.

The victim in this case is the prisoner’s niece, born to his third born sister. He is the youngest in their family.

The wording in the indictment is not consistent with the evidence in the case which only supports one incident of what was originally an allegation of rape of the victim. She was a student attending Lubadu Community School and was in Grade 6. She was then believed to be only 15 years old. Her precise age according to the mother’s evidence would place her at 15 years and 7 months at the material time of sexual penetration (August 2004) if her birth date was 30th January 1988.

This is a case of silent suffering by the victim whose tormentor was an immediate family member, a person in position of trust, authority and dependency to the victim, which nobody would probably have known what was happening, as is often the case in this type of child abuses, until something happens. In this case it was the pregnancy that revealed the silent violence that was being perpetrated against a child by an adult taking advantage of the position of trust that he had over the victim in the same way as between a father and a daughter.

This is a bad case of sexual penetration of a child. The law on Sexual Offences and Protection of the Children was passed for the benefit of a child victims in sexual abuse cases. I appreciate that the charge in this case is the result of negotiation between defence and the prosecution. However negotiation must not overlook the primary objective of the law to protect child victims of sexual abuse. Probably it would not matter much in this case whether the prisoner received a lenient sentence or not if sexual intercourse was consensual between two consenting adults.

This is not a case of two consenting adults engaging in this illicit affair. It is a case of an adult relative taking advantage of a child family member and abusing her sexually by use of force and threats. I note the prisoner’s story that tries to paint the picture that the victim herself offered sex to the prisoner in return for money. I find this hard to believe. The prisoner can manipulate the situation to get away with a light sentence after the amendment to the Code which provides more protection to female victims of tender age.

One of the serious aggravating features of this case is that the victim suffered injuries to her genitalia which she suppressed most likely out of fear as the result of that forced sexual encounter with her own uncle and she kept that concealed until early signs of pregnancy and probably ill-effects of the infections became visible in the physical appearance of the child. The village health assistance or VHA was engaged immediately to examine her in the village who concluded early signs of pregnancy and examination of the pelvic region revealed that there was tear in the vagina which was infected and there were swellings also. She was treated with antibiotics and supplied with antimalarial tablets as well.

The prisoner is a 27 year old married man with two children and was said to be the youngest of six children in the family of three boys and three girls. The victim was the daughter of his third born sister. The prisoner was baptised in the Lutheran faith but seems to have changed religion since being at Buimo Prison where he now worships in the PNG Revival Crusade Church. He was arrested on 29 April 2004 and to date has been in custody for one year three months and two weeks and six days. He has had primary education up to grade 6.

His lawyer submits that he is willing to pay compensation of K500 and a large pig as reconciliation between him and his sister and her family including the victim. Quite frankly I don’t know how much impact such a gesture would have on mending broken family relationship particularly when the insult and pain inflicted is upon his own immediate family. It simply looks foolish with great respect. I am therefore not particularly attracted by this invitation and submission. The prisoner cannot trade pig and money for the sacred and purity of the flesh or body of his own niece of the same blood line that he shamelessly defiled and pretend that life will be back to normal as before.

I have noted the prisoner’s expression of remorse and the desire to reconcile with the victim. But the wound he has caused will remain forever in the family and no amount of monetary compensation can undo the damage done. In some respects such actions would only add salt to the injury. This case calls for a stern retributive and deterrent sentence that must send a strong signal to all male persons that children must be protected from sexual abuse by family members. Researches have shown that family members are the biggest culprits when it comes to sexual molestation of females under the age of consent and even in cases of sodomy. Because the offenders are persons placed in position of trust, authority and dependency to the offender, the victims rarely speak out for fear of reprisals or shame or family pride and dignity.

This is an inappropriate case for a non-custodial punishment.

The circumstances of aggravation clearly outweigh all other consideration that mitigate the gravity of this offence including his plea of guilty and expression of remorse. They include the young age of the victim, the relationship of trust, authority and dependency of the victim to the prisoner, the injuries suffered, the resultant pregnancy from this forced sexual penetration or encounter, the violence applied to effect the crime, the deprivation of education and the disgrace to the family of his sister and other members of the family. He deserves to be punished and punished severely.

I take into account his plea of guilty, prior good record and his cooperation with the police. The offence he pleaded guilty to must be viewed with impunity for two basic reasons: Firstly, the victim was his close relative, his sister’s daughter. In many societies such an affair brings disrepute and scandal in the family. The family pride must come before temptation to sin and matured and married man as he was, he should have thought this out thoroughly before embarking on this sin particularly when he can even remember the exact dates he did this wrong upon his own niece. Second, she was not yet of age where she was capable of having sex as far as the law was concerned. She was still a child and the amendment to the Criminal Code was meant to protect young girls and even young boys.

If the law as it stands now is that the offender goes to prison for life where there is existing at the time of the offence a relationship of trust, authority or dependency, then the Parliament must have considered this offence to be very serious. It must be so because in the repealed section 216 of the Code, the maximum sentence an offender is liable to is five years.

Defence counsel referred me to The State –v- Sottie Apusa [1988] PNGLR 170 which is, until the amendment to the Code, the leading authority on unlawful carnal knowledge case under section 216 but that authority is no longer of any binding force because the law has changed. However the principles relative to the degree of seriousness are applicable in given circumstances of each case. The emphasis on the new law is based on the child-victim and the position of trust, authority or dependency between the offender and the victim.

The National Court sitting in Goroka in The State –v- Peter Lare [2004] Unreported National Court Judgement N2557 sentenced the prisoner on a charge of sexual penetration of a child under 12 years old, to 20 years imprisonment. In that case the victim was like an adopted daughter to the prisoner. She was orphan whose aunty was one of the prisoner’s two wives. When her parents died the prisoner and the aunt adopted her as child and raised her.

Over a period of four years the prisoner abused her sexually and inflected her with venereal disease. The Court weighed the circumstances of the case and found that the aggravating factors far outweighed the prisoner’s plea of guilty, prior good record and his expression of remorse apart from his cooperation with the police. It was a case of serious breach of trust that the Parliament was cognizant of when amending the Criminal Code.

A total aggregate sentence of 20 years was also imposed early this year in Kokopo in The State –v- Thomas Angup [2005] Unreported National Court Judgment N2830. This case was one that was subject of persistent abuse of sexual nature when the victim was 12 years old and continued over a period of six years even after complaint was filed with the police. There were altogether 4-6 counts of Sexual touching to sexual penetration of child under 12 and 16 and persistent sexual abuse of a child. The victim was a stepdaughter of the prisoner. He married the victim’s mother. She was one of the four children of the wife’s previous marriage. The prisoner has five children in his marriage with the victim’s mother.

An aggravating factor in this case was that the victim became pregnant even before she turned 16 and gave birth. She discontinued schooling and her future was destroyed. After adding all the sentences together and applying the totality principle the Court sentence him to an aggregate term of 20 years imprisonment.

I have considered the seriousness of this case. There is no evidence of persistent sexual abuse in this case although the prisoner himself admitted to two occasions but with close proximity of each other within the same month. The relationship between the prisoner and the victim was not as close as that of father and daughter although it is of the same blood line. Although there one similarly with The State –v- Thomas Angup (supra), I find that this case can be distinguished from those that I have referred to above.

I consider in all the circumstances the appropriate sentence is 10 years imprisonment in hard labour. Prisoner was arrested on 39 April 2004 for this trouble and has been in custody for one year five months and 13 days to today. That time is deducted; he will serve the remaining balance of 8 years 6 months 2 weeks and 3 days.

Lawyer for the State: Public Prosecutor
Lawyer for the Defence: Public Solicitor